Case 9:21-cv-00108-DWM Document 21 Filed 11/10/21 Page 1 of 41

AUSTIN KNUDSEN Montana Attorney General KRISTIN HANSEN Lieutenant General DAVID M.S. DEWHIRST Solicitor General BRENT MEAD Assistant Solicitor General ALWYN LANSING Assistant Attorney General 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401 Phone: 406-444-2026 Fax: 406-444-3549 [email protected] [email protected] [email protected] Attorneys for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

MONTANA MEDICAL ASSOCIATION, et al., Plaintiffs,

v.

AUSTIN KNUDSEN, et al.,

Defendants.

CV 21-108-M-DWM

DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12

Case 9:21-cv-00108-DWM Document 21 Filed 11/10/21 of 41

DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12 | i

TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................. iii INTRODUCTION ............................................................................................ 1 MOTION TO DISMISS STANDARD................................................................... 3 ARGUMENT .................................................................................................. 4 I. Plaintiffs fail to demonstrate standing so this Court lacks

jurisdiction. ........................................................................................... 4

A. Plaintiff Montana Medical Association ....................................... 6

B. Plaintiffs Five Valleys Urology and Western Montana Clinic ............................................................................................ 8

C. Plaintiff Providence Health Services ........................................ 12

D. Plaintiffs Appleby Individuals................................................... 12

E. Plaintiffs’ own actions will cause the injury they complain of if they prevail. ........................................................................ 14

II. Plaintiffs failed to state any valid claim. ........................................... 15

A. Neither the ADA nor OSHA preempt HB 702. ......................... 16

1. Plaintiffs can and do comply with both the ADA and HB 702. .................................................................................... 18

2. HB 702 does not frustrate any clear and unambiguous objective of the ADA. ........................................................ 20

3. Plaintiffs can and do comply with both OSHA and HB 702. .................................................................................... 20

4. HB 702 does not frustrate any of OSHA’s clear and unambiguous objectives. ................................................... 23


DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12 | ii

B. Montana’s constitutional environmental protections do not apply to anti-discrimination laws such as HB 702. ............ 24

C. Anti-discrimination statutes such as HB 702 do not violate Montana’s Equal Protection Clause. ............................. 28

D. Anti-discrimination statutes such as HB 702 do not violate the Fourteenth Amendment’s Equal Protection Clause. ...................................................................................... 31

CONCLUSION ............................................................................................. 33 CERTIFICATE OF COMPLIANCE ................................................................... 34 CERTIFICATE OF SERVICE .......................................................................... 34


DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12 | iii

TABLE OF AUTHORITIES

Cases

Ala. Dep’t of Revenue v. CSX Transp., Inc., 575 U.S. 21 (2015) ............................................................................. 32

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................... passim

Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147 (1984) ..................................................................... 23–24

Bartmess v. Board of Trustees, 726 P.2d 801 (Mont. 1986) ................................................................ 28

Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) ........................................................................... 17

Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ............................................................................. 5

English v. Gen. Elec. Co., 496 U.S. 72 (1990) ............................................................................. 17

Gazelka v. St. Peter’s Hosp., 420 P.3d 528 (Mont. 2018) ................................................................ 29

Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333 (1977) ............................................................................. 6

Hurley v. Irish-American Gay, 515 U.S. 557 (1995) ....................................................................... 2, 28

In re Sonsteng, 573 P.2d 1149 (Mont. 1977) .............................................................. 27

Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018) ............................................................. 16

Lee v. City of L.A., 250 F.3d 668 (9th Cir. 2001) ................................................................ 4

Llewellyn v. Crothers, 765 F.2d 769 (9th Cir. 1985) ............................................................. 32

Lujan v. Def. of Wildlife, 504 U.S. 555 (1992) ......................................................................... 3, 5


DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12 | iv

Mont. Cannabis Indus. Ass’n v. State, 286 P.3d 1161 (Mont. 2012) .............................................................. 27

Mont. Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 988 P.2d 1236 (Mont. 1999) .............................................................. 24

Park Cty. Envtl. Council v. Mont. Dep’t of Envtl. Quality, 477 P.3d 288 (Mont. 2020) ................................................................ 25

Powell v. State Comp. Ins. Fund, 15 P.3d 877 (Mont. 2000) .................................................................. 29

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) ........................................................................... 17

S. Bay United Pentecostal Church v. Newsom, 140 S. Ct., (2020) ........................................................................... 6, 27

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ......................................................................... 5

State v. Nelson, 941 P.2d 441 (Mont. 1997) .......................................................... 28–29

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ............................................................................. 7

Thompson v. McCombe, 99 F.3d 352 (9th Cir. 1996) ................................................................. 3

United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 (1973) .............................................................................. 7

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State,

454 U.S. 464 (1982) ............................................................................. 5 Vision Net, Inc. v. State,

447 P.3d 1034 (Mont. 2019) ........................................................ 29, 30 Warth v. Seldin,

422 U.S. 490 (1975) ............................................................................. 6 Whitmore v. Arkansas,

495 U.S. 149 (1990) ........................................................................... 15 Wiser v. State,

129 P.3d 133 (Mont. 2006) ................................................................ 29


DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12 | v

Zixiang Li v. Kerry, 710 F.3d 995 (9th Cir. 2013) ............................................................... 3

Other Authorities

Code of Federal Regulations Tit. 29 § 1910.502 .................................................................. 21, 22, 23 Tit. 29 § 1910.502(a)(2)(iv) ................................................................ 22 Tit. 29 § 1910.502(a)(2)(v) ................................................................. 22 Tit. 29 § 1910.502(c)(1) ...................................................................... 21 Tit. 29 § 1910.502(c)(7) ...................................................................... 21 Tit. 29 § 1910.502(c)(7)(i) .................................................................. 21 Tit. 29 § 1910.502(m) ......................................................................... 22

Federal Register 86 Fed. Reg. 61,402 (Nov. 5, 2021) .................................................... 23

Federal Rules of Civil Procedure

Rule 12(b)(1) ........................................................................................ 3 Rule 12(b)(6) ........................................................................................ 3

Montana Code Annotated

Tit. 49 ................................................................................................... 1 § 49-2-312 ............................................................................................ 8 § 37-1-316(12) .................................................................................... 10 § 37-1-316(18) ...................................................................................... 9 § 50-1-105 ........................................................................................ 1, 6 § 50-5-101(7) ...................................................................................... 30 § 50-5-101(26) .................................................................................... 30 § 50-5-101(31) .................................................................................... 30 § 50-5-101(37) .................................................................................... 30 § 50-5-101(56) .................................................................................... 30

Montana Constitution Art. II, § 3 .......................................................................................... 24 Art. IX, § 1 ......................................................................................... 24 Art. IX, § 1(3) ............................................................................... 24–25


DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12 | vi

Administrative Rules of Montana Rule 37.106.4 ..................................................................................... 30 Rule 37.106.6 ..................................................................................... 30 Rule 37.106.28 ................................................................................... 30


DEFENDANTS’ BRIEF IN SUPPORT OF SECOND MOTION TO DISMISS UNDER FED. R. CIV. P. 12 | 1

Defendants Austin Knudsen and Laurie Esau (hereafter “the

State”) submit this brief in support of their second motion to dismiss.

INTRODUCTION

While other states considered implementing ‘vaccine passports,’1

the State of Montana acted to protect Montanans from discrimination

based on vaccination status and to protect Montanans from the

involuntary disclosure of their private health care information as a

condition of everyday life. HB 702 created a new protected class in

Montana’s Human Rights Act, Mont Code Ann. Title 49. The law works

within the existing anti-discrimination and public health law structure.

See MCA § 50-1-105 (“It is the policy of the state of Montana that the

health of the public be protected and promoted to the extent practicable

through the public health system while respecting individual rights to

dignity, privacy, and nondiscrimination.”). On a hotly contested

contemporary social question, the Legislature has spoken clearly: in

Montana, HB 702 prohibits discrimination based on vaccination status

and protects medical privacy. And anti-discrimination laws like HB 702

1 See, e.g., Mark Scolforo, Vaccine Passports are Latest Flash Point in COVID Politics, Associated Press (April 3, 2021) (available at https://bit.ly/3lTZxk6 (accessed November 10, 2021)).



are “well within the State’s usual power to enact when a legislature has

reason to believe that a given group is the target of discrimination.”

Hurley v. Irish-American Gay, 515 U.S. 557, 572 (1995).

Plaintiffs, however, earnestly wish to discriminate. In fact, they

claim that HB 702 discriminates against them because it prohibits them

from discriminating. Compl. ¶¶ 70–71, 78–79.2 Plaintiffs’ disagreement

is fine and normal in a democratic society. The social compact sometimes

requires that citizens forebear laws they dislike. But neither the

Plaintiffs nor this Court are the State, empowered to make or unmake

the policy judgments set forth in HB 702. And differing policy

preferences don’t grant objectors standing. Nor do they transform

disagreements into legitimate legal arguments. Such is the case here.

To be sure, Plaintiffs view their intended discriminatory efforts—firing

employees who refuse to submit to vaccinations that haven’t all been

formally approved by the FDA—serve some noble goal.

Noble intentions or not, HB 702—like any civil rights protection—

exists to shield individuals from the abusive excesses of misguided

groupthink. The State of Montana has thankfully removed from

2 Citations to “Complaint” refer to Plaintiffs’ First Amended Complaint.



Plaintiffs’ purview the right to coerce their employees into medical

decisions they have the right to refuse. Despite Plaintiffs’ alleged need

and desire to discriminate against fellow Montanans, they lack standing

and have failed to state a claim upon which relief may be granted.

This Court should therefore dismiss Plaintiffs’ Complaint.

MOTION TO DISMISS STANDARD

Complaints should be dismissed when the court lacks subject

matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The plaintiff bears the

burden of proving subject matter jurisdiction. See Thompson v.

McCombe, 99 F.3d 352, 353 (9th Cir. 1996). Standing is “an essential and

unchanging” requirement to invoke the court’s subject matter

jurisdiction. Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992).

Under Rule 12(b)(6), a complaint must be dismissed if it fails to

state a claim. Courts can dismiss a complaint under Rule 12(b)(6) “when

the complaint either (1) lacks a cognizable legal theory or (2) fails to

allege sufficient facts to support a cognizable legal theory.” Zixiang Li v.

Kerry, 710 F.3d 995, 999 (9th Cir. 2013). While courts accept as true all

well-pleaded factual allegations, assertions that “are no more than

conclusions, are not entitled to the assumption of truth.” Ashcroft v.



Iqbal, 556 U.S. 662, 679 (2009). Nor are courts “bound to accept as true

a legal conclusion couched as a factual allegation.” Id. at 678. A

complaint should be dismissed if it offers only ‘“naked assertion[s]’ devoid

of ‘further factual enhancement.’” Id.

The Complaint suffers from each of these defects.

In considering a 12(b)(6) motion, the court may properly consider

matters of public record without converting the motion to dismiss to a

motion for summary judgment. See Lee v. City of L.A., 250 F.3d 668, 689

(9th Cir. 2001) (“a court may take judicial notice of “matters of public

record.”).

ARGUMENT

I. Plaintiffs fail to demonstrate standing so this Court lacks jurisdiction.

Plaintiffs’ Complaint should be dismissed for lack of standing.

There are three elements of standing:

First, the plaintiff must have suffered an ‘injury in fact’ – an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant… Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.



Lujan, 504 U.S. at 560–61 (citations and quotations omitted). And

Plaintiffs must “clearly allege facts demonstrating each element” in their

pleading. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

Injury in fact requires that the injury be concrete, particularized,

as well as actual or imminent. Id. at 1548. A concrete injury “must

actually exist,” that is, be “real and not abstract.” Id. Similarly,

imminence requires that the injury have actually occurred or be certain

to occur and not be merely hypothetical. See Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 409 (2013) (“threatened injury must be certainly

impending to constitute injury in fact” and “allegations of possible future

injury are not sufficient”). “For an injury to be particularized, it must

affect the plaintiff in a personal and individual way.” Spokeo, Inc., 136 S.

Ct. at 1548 (citation and quotations omitted); see also Valley Forge

Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S.

464, 477 (1982) (The plaintiff must show “not only that the statute is

invalid but that he has sustained or is immediately in danger of

sustaining some direct injury as the result of its enforcement, and not

merely that he suffers in some indefinite way in common with people

generally.”). Generalized grievance over the legislative process does not



confer standing. See Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[W]hen

the asserted harm is a ‘generalized grievance’ shared in substantially

equal measure by all or a large class of citizens, that harm alone normally

does not warrant exercise of jurisdiction … [w]ithout such limitations …

the courts would be called upon to decide abstract questions of wide

public significance even though other governmental institutions may be

more competent to address the questions.”). Where, as here, a party

seeks to overturn the valid policy choice of the political branches the court

must decline jurisdiction because those policy choices are best entrusted

to the legislature and executive branches. See S. Bay United Pentecostal

Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (State legislatures enjoy

broad latitude in balancing individual liberties and public health during

pandemics); see also MCA § 50-1-105 (expressly considering anti-

discrimination interests are part of Montana’s public health laws).

A. Plaintiff Montana Medical Association

In addition to the traditional rules of associational standing, see

Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977),

plaintiff-organizations must make “specific allegations establishing that

at least one identified member had suffered or would suffer harm.”



Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). Associational

standing “pleadings must be something more than an ingenious academic

exercise in the conceivable.” United States v. Students Challenging

Regulatory Agency Procedures, 412 U.S. 669, 688 (1973).

Plaintiff Montana Medical Association’s (“MMA”) mere recital of

the elements of associational standing, Compl. ¶ 13, does not suffice to

confer standing. See Ashcroft, 556 U.S. at 678 (“Threadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements” are insufficient pleadings.). The Plaintiffs’ statements that

some MMA members are employed in various medical settings is

similarly insufficient. Compl. ¶¶ 14–15. MMA must make some factual

showing that specific members are harmed by HB 702. See Summers,

555 U.S. at 498–99 (The requirement of naming affected members may

only be dispensed with “where all the members of the organization are

affected by the challenged activity.” (emphasis in original)). Summers’s

requirement that all organization members be affected by the action is

especially pertinent in this case because the Plaintiffs seek to evade



Montana HB 702 in order to terminate medical workers, including some

who are presumably MMA members. See Compl. ¶¶ 18(e), 22(e).3

Plaintiffs’ remark that the “desired relief is consistent with the

MMA mission” ignores that MMA must demonstrate that the desired

relief will redress the complained-of injury. Compl. ¶ 13. MMA merely

states it is injured—but not how it is injured or how its requested relief

would redress its injuries. MMA’s purely hypothetical injury to unnamed

and unknown members cannot establish standing.

B. Plaintiffs Five Valleys Urology and Western Montana Clinic

Plaintiffs Five Valleys Urology, PLLC and Western Montana Clinic,

PC, collectively “Clinics,” complain of purely hypothetical injuries. See

Compl. ¶ 18. The Clinics despair that HB 702 prohibits them from

practicing “ethical and effective medicine.”4 Id. But they cannot

3 Plaintiffs’ Amended Complaint adds “MMA has within its membership physicians impacted by MCA § 49-2-312, including physicians employed at FVU, WMC, and PH&S.” This amendment does not cure their standing defects because it fails to name specific members or allege that MMA’s entire membership is affected. And MMA, again, doesn’t allege that some “within its membership” are harmed. Nor could it. The cryptic language in the amended complaint creates the obvious inference that “some within its membership” are protected by the law. 4 Additionally, Clinics complain that HB 702 harms their credibility. Compl. ¶ 7(e). They haven’t supported that assertion with any factual allegations, for instance, explaining how HB 702 has hurt their credibility over the last six months.



demonstrate injury because—presumably—they currently practice

medicine in an ethical and effective manner. If the unsupported

allegations in their Complaint were true, that could not be the case. The

Clinics’ vague assertions fall short of a legal claim and they don’t plead

any facts as to how HB 702 prohibits the effective or ethical treatment of

patients.

HB 702 went into effect on May 7, 2021 and has remained in effect

for the previous six months; yet Clinics do not argue that they have been

providing ineffective and unethical medical care during that time.5 If

they can provide effective and ethical medical care now—while HB 702

is in effect—they cannot seriously contend that HB 702 prevents them

(and likely will prevent them) from providing effective and ethical care

going forward.

Plaintiff Clinics also fail to plead sufficient facts demonstrating

injury. Clinics complain “unvaccinated medical workers” pose a disease

transmission risk that vaccinated medical workers do not. Compl.

¶18(a)–(b). Such a sweeping statement would be easy to support if the

5 If Clinics are continuing to practice medicine in a setting that violates generally accepted standards of practice, then they are in violation of MCA § 37-1-316(18). Given that the Clinics and PHS continue to treat patients, this must not be the case.



data supported it.6, 7 Yet Plaintiffs cite no medical authority and provide

no elaboration to support these claims. The CDC concedes that both

vaccinated and unvaccinated individuals can spread COVID-19,8 making

Plaintiffs’ assertions in their Complaint wholly unsupported.

Plaintiffs do not state they employ unvaccinated medical workers

or that any hypothetical unvaccinated medical workers have led to, or are

certainly going lead to, an infectious disease outbreak. To the contrary,

current law limits licensed medical workers from practicing “while

suffering from a contagious or infectious disease.” MCA § 37-1-316(12).

6 S.V. Subramanian & Akhil Kumar, Increases in COVID-19 are unrelated to levels of vaccination across 68 countries and 2947 counties in the United States [published online ahead of print] Eur J Epidemiol, 2021, available at https://bit.ly/3jglRCV (last accessed November 10, 2021).

7 CDC, Science Brief: SARS-CoV-2 Infection-Induced and Vaccine-Induced Immunity (updated Oct. 29, 2021), available at https://bit.ly/2YA3i5v (last accessed November 10, 2021). (“Available evidence shows that fully vaccinated individuals and those previously infected with SARS-CoV-2 each have a low risk of subsequent infection for at least 6 months.”). 8 CDC Science Brief: Covid-19 Vaccines and Vaccination (September 15, 2021) (“[M]ore data are needed to understand how viral shedding and transmission from fully vaccinated persons...”), available at https://bit.ly/2XyfumG (accessed November 10, 2021). CDC’s statement is relevant because (1) it acknowledges some risk of vaccinated individuals transmitting COVID-19 meaning that Plaintiffs will likely need to continue current practices to mitigate transmission regardless of HB 702, see infra n.9., and (2) the scientific uncertainty surrounding transmission means that Plaintiffs’ alleged injuries are likewise too speculative and hypothetical.



The Clinics further do not explain why their current COVID-19

practices such as patient screening, staff isolation, cleaning practices, as

well as pre-appointment check-ups are insufficient.9 Instead, the Clinics

assert—without any further factual development—that HB 702 harms

them. Such bare allegations don’t cut it in federal court. See generally

Ashcroft, 556 U.S. 662.

The litany of abstract, hypothetical scenarios does not substitute

for well pleaded facts. See, e.g., Compl. ¶ 18(f) (“From time to time,

physicians who practice at the Clinics refer their patients to other OPPs

or to Hospitals. Care for these patients may be jeopardized if the

receiving institution has unvaccinated employees and/or is otherwise

restrained in its ability to safely treat these patients.” (emphases added));

see also Compl. ¶ 17 (OPPs “employ individuals who may have

compromised immune systems” (emphasis added)). Hypothetical injuries

that may happen from time to time if an unidentified office theoretically

employs unvaccinated workers who might transmit pathogens or

infectious diseases to patients and co-workers clearly fail to meet the

9 Plaintiff Five Valleys Urology “Coronavirus (COVID-19)” patient information available at https://bit.ly/3aRloSQ (accessed November 10, 2021).



requirements for standing. Such abstract thought experiments amount

to legislative disagreements. They don’t confer Article III standing.

C. Plaintiff Providence Health Services

Plaintiff Providence Health Services (“PHS”), echoes the same

alleged injuries as the Clinics. Compare Compl. ¶ 18 with ¶ 22. For the

same reasons stated above, PHS does not allege concrete injuries to any

legally recognized right, nor does PHS plead sufficient facts to support

any allegation of injury.

D. Plaintiffs Appleby Individuals

Plaintiffs Pat Appleby, Mark Carpenter, Lois Fitzpatrick, Joel

Peden, Diana Jo Page, Wallace L. Page, and Cheyenne Smith

(collectively, “Appleby individuals”) claim—without supporting

allegations—that they are harmed on the basis of their

immunocompromised status and presence of unvaccinated individuals at

“commercial and professional establishments.” Compl. ¶ 25. The

Appleby individuals also state they must avoid certain activities

including, “meeting with people in crowded settings, engaging in close

contact with other people, and engaging in even casual contact with a

likely carrier of the COVID-19 virus or other infectious agent.” Compl.



¶ 24. The Appleby individuals’ source of harm is far too conjectural to

support standing and cannot reasonably be traced to the implementation

of HB 702.

The Appleby individuals fail to plead an injury attributable to

HB 702. Indeed, the need for these Plaintiffs to avoid some activities and

interactions preexisted HB 702. And that need persists even if HB 702

ceased to exist. Both vaccinated and unvaccinated alike may carry and

transmit infectious diseases such as COVID-19. See, e.g., supra n.8 (both

vaccinated and unvaccinated individuals may carry and spread COVID-

19). The same precautions that medical offices already undertake would

need to continue to accommodate the Appleby individuals, regardless of

whether medical facilities mandate employee vaccinations. Vaccination

does not end the risk of COVID-19 transmission by vaccinated

individuals. The risks the Appleby individuals complain of exist

regardless of HB 702.

The Appleby individuals’ alleged harm offers no more than

hypotheticals and abstractions. See Compl. ¶ 25 (“They have to avoid

commercial and professional establishments” that “fail to take steps to

minimize the spread” of “common viruses and germs” and will have to



avoid such establishments that “fail to take steps to minimize the spread

of” “new pathogens.”) Their assertions underscore that these plaintiffs

have in the past mitigated and continue to mitigate risk of infectious

disease—including common viruses—regardless of HB 702. Even this

acknowledgement fails to state what steps would be sufficient to

ameliorate their concerns, or why current procedures such as those by

the Clinics are insufficient. See, e.g., supra n.9 (detailing current COVID-

19 procedures employed by Plaintiffs). Further, by stating they must

avoid establishments that fail to take unspecified steps to mitigate the

risk of currently unknown pathogens, these plaintiffs detach their

Complaint from any reasonable connection to HB 702.

E. Plaintiffs’ own actions will cause the injury they complain of if they prevail.

Plaintiffs Clinics and PHS would cause the injury they complain of

if they are allowed to discriminate in violation of HB 702. The State’s

response to address medical workforce shortages will be for naught if

Plaintiffs terminate workers and exacerbate the shortage.10 PHS already

requested Montana National Guard assistance to alleviate its staff

10 “Gov. Gianforte Announces Innovative Program to Recruit Health Care Workers to Montana,” Press Release Nov. 2, 2021 available at https://bit.ly/3GYFsl9.



shortage.11 Without sufficient staffing, medical facilities risk reducing

their standard of care to patients. Self-inflicted staff shortages pose a

real and substantial risk to medical facilities’ ability to provide effective

and ethical medical care to their patients.

In sum, the Plaintiffs, collectively, fail to plead any injury traceable

to HB 702. And even if there was an injury, the path to get there is

attenuated and shrouded in conjecture. See Whitmore v. Arkansas,

495 U.S. 149, 158 (1990) (Such theories of injury carry the Court “into

the area of speculation and conjecture and beyond the bounds of [the

Court’s] jurisdiction.”). This Court should decline to follow this path and

instead apply the straightforward rule that Plaintiffs carry the burden of

clearly articulating facts necessary to establish standing. Because

Plaintiffs lack standing, their claims must be dismissed.

II. Plaintiffs failed to state any valid claim.

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible

on its face; that is, plaintiff must plead factual content that allows the

11 Dennis Bragg, “National Guard to aid Missoula COVID-19 response,” KPAX (September 21, 2021) available at https://bit.ly/3jqgQHY (accessed November 10, 2021).



court to draw the reasonable inference that the defendant is liable. The

court is not required to accept as true allegations that are merely

conclusory, unwarranted deductions of fact, or unreasonable inferences.”

(internal citations and quotations omitted). Khoja v. Orexigen

Therapeutics, Inc., 899 F.3d 988, 1008 (9th Cir. 2018). Courts “are not

bound to accept as true a legal conclusion couched as a factual allegation.”

Ashcroft, 556 U.S. at 678. A “court considering a motion to dismiss can

choose to begin by identifying pleadings that, because they are no more

than conclusions, are not entitled to the assumption of truth.” Id. at 679.

After removing such pleadings, the Court should dismiss the complaint

when the remaining allegations do not give rise to a plausible claim for

relief. Id.

Plaintiffs’ complaint is nothing more than unfounded conclusions

and should be dismissed.

A. Neither the ADA nor OSHA preempt HB 702.

Plaintiffs’ first four claims revolve around a purported inability to

comply with the Americans with Disabilities Act (ADA) and Occupational

Health and Safety Act (OSHA) in the face of HB 702. See Compl. ¶¶ 36,

44, 50, 55.



Preemption of state law is strongly disfavored. See Rice v. Santa

Fe Elevator Corp., 331 U.S. 218, 230 (1947) (Courts “start with the

assumption that the historic police powers of the States were not to be

superseded by [federal law] unless that was the clear and manifest

purpose of Congress.”). Conflict preemption requires that: (1) state law

conflicts with federal to make compliance with both an impossibility, or

(2) that the state law poses an obstacle to the full purposes and objectives

of federal law. See English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (“the

Court has found pre-emption where it is impossible for a private party to

comply with both state and federal requirements.”); Chamber of

Commerce v. Whiting, 563 U.S. 582, 607 (2011) (Kennedy, J., concurring)

(Obstacle preemption is a “high threshold” that does not justify a

“freewheeling judicial inquiry” into whether state laws are “in tension”

with federal objectives, as such a standard would undermine the

principle that “it is Congress rather than the courts that preempts state

law.”). The lodestar of preemption inquiry is that Congress must have

clearly and unambiguously preempted the state law. See Rice, 331 U.S.

at 230.



1. Plaintiffs can and do comply with both the ADA and HB 702.

Under Claims 1 and 2, Plaintiffs have not and cannot allege that it

is impossible to comply with both HB 702 and the ADA. Nor do they offer

any facts as to why their current practices—while both HB 702 and the

ADA are in effect—violate the ADA.

Plaintiffs make no attempt to show that the reasonable

accommodations mandated by the ADA require them to fire employees.

Instead, Plaintiffs broadly assert that HB 702 prevents Clinics and PHS

“from taking the steps necessary to accommodate immune system

compromised applicants or employees.” Compl. ¶¶ 33–34. Absent from

this perfunctory conclusion is any discussion of current reasonable

accommodations, allegations explaining why HB 702 § 1(3)(b) does not

allow for compliance with the ADA,12 or indications that they have or will

face ADA enforcement actions. Because they are presumably complying

with both laws right now and have been complying since May 7, their

12 HB 702 § 1(3)(b) allows for health care facilities to inquire into their employees’ vaccination status and implement “reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune to protect the safety and health of employees, patients, visitors, and other persons from communicable diseases.”



unsupported assertion that HB 702 makes ADA compliance impossible

cannot state a valid claim.

Similarly, Plaintiffs fail to allege any facts demonstrating that they

are excluding or denying service to immunocompromised patients due to

HB 702. The very nature of the Appleby individuals’

immunocompromised status means they cannot utilize health care in the

same way other patients do because they cannot be exposed to “common

viruses or germs” or “crowded settings,” and they cannot “engage in close”

or “casual contact” with a likely carrier of infectious disease. See Compl.

¶¶ 24–25. Regardless of HB 702, additional steps must be taken to care

for these patients. And HB 702 § 1(3)(b) allows for health care facilities

to accommodate these patients. Unless Plaintiffs are complaining that

they are currently violating the ADA, then they can’t plausibly claim that

HB 702 and the ADA are incompatible.

Plaintiffs’ other assertions likewise delve into the hypothetical.

See, e.g., Compl. ¶ 32 (“If applicants or employees … ”) (emphasis added);

¶ 35 (“OPPs and Hospitals that adhere to Montana HB 702 § 1 risk

violating the ADA § 12112(b)(5)(A).”); id. (“HB 702 discourages immune-

compromised workers … from accepting potential employment.”)



(emphasis added). These indefinite words—‘if,’ ‘risk,’ ‘discourages,’ and

‘potential’—lack the concreteness necessary to show that Plaintiffs’

compliance with both HB 702 and the ADA is impossible.

2. HB 702 does not frustrate any clear and unambiguous objective of the ADA.

Plaintiffs state that HB 702 “undercuts the purposes of the ADA.”

Compl. ¶ 36. They fail to articulate those purposes or point to where

Congress clearly and unambiguously did so. Plaintiffs’ vague sentence

fragment tacked onto the end of a claim, with no further factual

development, is insufficient to preempt a duly enacted state law. It’s also

a fair bet that Congress didn’t clearly intend the ADA—a

nondiscrimination statute—to require inverse discrimination against

medical workers.

3. Plaintiffs can and do comply with both OSHA and HB 702.

Neither OSHA, nor its regulations, conflict with the anti-

discrimination provisions of HB 702. Plaintiffs’ claims lack merit and

factual support.

Plaintiffs plead no facts, nor any allegations, that it is impossible to

comply with both the Act and HB 702. They instead hedge that HB 702



may “at least impede[] [them] from complying” with OSHA. See Compl. ¶

48. An “impediment” is not an impossibility; Plaintiffs’ language merely

reaffirms that they are currently complying with OSHA. Plaintiffs’

statement that HB 702 “impedes them from identifying or controlling the

placement of employees based on vaccination status,” Compl. ¶ 48, is

clearly and unequivocally contradicted by the text of the law itself. See

HB 702 § 1(3)(b); supra n.12. Perhaps most importantly, as discussed

below, the OSHA regulation cited by Plaintiffs makes clear that

vaccination—specifically the COVID-19 vaccination—is not required for

OSHA compliance. Plaintiffs grossly misread the statute to manufacture

a conflict that doesn’t exist.

Plaintiffs’ claim that they cannot comply with 29 C.F.R. § 1910.502

and HB 702 is belied by the text of the regulation itself. Plaintiffs read

only part of the rule, § 1910.502(c)(1) and (c)(7), which requires the

development of plans and policies to reduce COVID-19 transmission

rates, but they ignore the remainder of the rule which set the boundaries

of those plans and policies. Compl. ¶ 53; see 29 C.F.R. § 1910.502(c)(7)(i)

(The COVID-19 plan must “minimize the risk of transmission of COVID-

19 … as required by paragraphs (d) through (n)”). Regarding vaccination,



the rule states: “The employer must support COVID-19 vaccination for

each employee by providing reasonable time and paid leave (e.g., paid

sick leave, administrative leave) to each employee for vaccination and

any side effects experienced following vaccination.” Id. § 1910.502(m).

HB 702 § 1(3)(a) states, “A person, governmental entity, or an employer

does not unlawfully discriminate under this section if they recommend

that an employee receive a vaccine.” These two provisions harmonize;

they don’t conflict. Indeed, Plaintiffs’ regulatory misreading is further

emphasized by the fact that OSHA doesn’t require full workforce

vaccinations: the regulation exempts healthcare facilities “where all

employees are fully vaccinated.” See 29 C.F.R. §§ 1910.502(a)(2)(iv)–(v).

If 29 C.F.R. § 1910.502 mandated vaccinations, there would be no reason

for the exemption in § 1910.502(a)(2)(iv)–(v), and the regulation would

simply state that vaccines are mandatory.

Even if some Plaintiffs might not qualify for this exemption based

on their employees’ autonomous medical decisions, that fact merely

requires them to comply with 29 C.F.R. § 1910.502(m). It doesn’t make

compliance impossible. Finally, Plaintiffs don’t really plead that HB 702



prevents them from complying with 29 C.F.R. § 1910.502, only that it “at

least impedes” compliance. Compl. ¶ 55. They fail to explain why or how.

OSHA notably issued an emergency temporary standard (“ETS”)

that would mandate COVID-19 vaccinations for many businesses. See

COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86

Fed. Reg. 61,402 (Nov. 5, 2021); stayed by BST Holdings, L.L.C. v.

Occupational Safety and Health Administration, No. 21-60845 (5th Cir.

Nov. 6, 2021) (citing “grave statutory and constitutional issues” with the

ETS).

Just like their attempts with the ADA, Plaintiffs fail to outline their

current practices, explain why they are insufficient, or identify any

pending or imminent noncompliance enforcement actions they face. Such

deficiencies in the pleadings are fatal.

4. HB 702 does not frustrate any of OSHA’s clear and unambiguous objectives.

Plaintiffs add a single sentence alleging HB 702 undercuts OSHA’s

purpose. Compl. ¶ 50. They neither articulate that purpose nor explain

how HB 702 undercuts it. The Court doesn’t – and shouldn’t – have to do

that work for them. Cf. Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S.



147, 149 (1984) (allowing dismissal without any requirement that the

district court rehabilitate deficient pleadings).

B. Montana’s constitutional environmental protections do not apply to anti-discrimination laws such as HB 702.

Plaintiffs baselessly assert their rights to a clean and healthful

environment under the Montana Constitution, Article II, section 3 and

Article IX, section 1, are violated because they cannot discriminate

against Montanans based on vaccination status. Compl. ¶¶ 56–66.

These claims lack foundation in Montana law, are entirely conclusory

and unsupported, and should be dismissed.

The Montana Constitution guarantees the right to a clean and

healthful environment and requires the Legislature to maintain and

improve the environment. See Mont. Const. art. II, § 3, art. IX, § 1.

These provisions apply to the natural environment: air, water, and

land pollution, as well as resource depletion, but not public healthcare

and nondiscrimination. See Mont. Envtl. Info. Ctr. v. Dep’t of Envtl.

Quality, 988 P.2d 1236, 1246–48 (Mont. 1999) (discussing the intentions

of the 1972 Constitutional Convention, specifically, the intentions of the

Natural Resources Committee which drafted Article IX); see also Mont.



Const. art. IX, § 1(3) (“The legislature shall provide … adequate remedies

to prevent unreasonable depletion and degradation of natural resources.”

The “constitutional text” applies to the “air, water, and soil.” Park Cty.

Envtl. Council v. Mont. Dep’t of Envtl. Quality, 477 P.3d 288, 304 (Mont.

2020) (The environmental rights apply to “protection of the

environmental life support system from degradation and prevention of

unreasonable depletion and degradation of the state's natural

resources.”) (internal citations and quotations omitted). The framers

sought to preserve and improve the conditions of the natural

environment and required the Legislature to take actions to address

those concerns, but there is no authority from the text of the Montana

Constitution, intent of the convention delegations, or Montana caselaw

to apply the clean and healthful provisions beyond harms to the natural

environment.

Plaintiffs cite no authority for the assertion that the clean and

healthful provisions apply to infectious diseases or put an affirmative

burden on the State to eliminate pathogens from the environment. See

Compl. ¶¶ 56–66. Plaintiffs’ proposed course of action would not

eliminate pathogens anyway because vaccinated people can carry



diseases such as COVID-19. See, e.g., supra n.8 (The CDC acknowledges

vaccinated individuals may carry and spread COVID-19). The law

simply does not support Plaintiffs’ reading of these provisions.

Even if the law recognized Plaintiffs’ claim, they have not pleaded

any authority or facts demonstrating that an anti-discrimination law

implicates the provisions. See Compl. ¶¶ 56-66.

The Plaintiffs have not pleaded any facts at all supporting their

clean and healthful claims. They offer only unsupported legal

conclusions. See Compl. ¶ 58 (“Montana HB 702 § 1 impedes OPPs and

Hospitals … from maintaining a healthful environment”); ¶ 59

(“Montana HB 702 § 1 prevents persons with compromised immune

systems, such as the Patients, from enjoying a healthy environment and

securing their right to safe and healthy medical care”); ¶ 63 (“Montana

HB 702 § 1 violates the legislature’s obligation to maintain and improve

a healthy environment by facilitating and even mandating the

employment in medical offices of persons who are more likely to spread

disease.”); ¶ 64 (“Montana HB 702 § 1 impedes OPPs and Hospitals …

from maintaining a healthful environment”). Courts should reject “naked

assertions” like these. See generally Ashcroft, 556 U.S. 662.



Laws such as HB 702 derive from the State’s police power, not from

Montana’s clean and healthful environment provisions. See In re

Sonsteng, 573 P.2d 1149, 1153 (Mont. 1977) (“[L]aws and regulations for

the protection of public health, safety, welfare and morals” derive from

the state’s plenary police power.”); see also Mont. Cannabis Indus. Ass’n

v. State, 286 P.3d 1161, 1166 (Mont. 2012) (“the right to seek health is

circumscribed by the State's police power to protect the public’s health

and welfare.”). Plaintiffs ignore that the State enjoys broad flexibility in

balancing individual rights against public health regulations. See S. Bay

United Pentecostal Church, 140 S. Ct. at 1613 (“Our Constitution

principally entrusts the safety and the health of the people to the

politically accountable officials of the States to guard and protect. When

those officials undertake to act in areas fraught with medical and

scientific uncertainties, their latitude must be especially broad.” (internal

citations and quotations omitted)). Montana struck that balance

decidedly in favor of freedom from discrimination.

Montana law does not recognize Claims Five and Six. The clean

and healthful provisions apply to the natural environment—not pro-

discrimination claims such as those raised by the Plaintiffs. Even if these



were recognized legal theories, Plaintiffs’ bare legal assertions without

any factual development are insufficient to sustain the claims.

C. Anti-discrimination statutes such as HB 702 do not violate Montana’s Equal Protection Clause.

Plaintiffs’ Montana Equal Protection Clause argument does not

state a claim, nor does it support any claim with sufficient facts. Compl.

¶¶ 67–74.

Plaintiffs’ unsupported legal claims that Montana has no “state

interest or rational basis,” Compl. ¶¶ 72–73, supporting HB 702 ignores

that states have a compelling interest in protecting groups from

discrimination. See Hurley, 515 U.S. 557 at 572. The Clinics and PHS

validate the State’s interest by repeatedly expressing their wish to fire

individuals based on vaccination status. See, e.g., Compl. ¶¶ 18, 22. The

State, moreover, possesses an unquestioned compelling interest in

protecting the fundamental rights of its citizens. See Bartmess v. Board

of Trustees, 726 P.2d 801, 807 (Mont. 1986) (Morrison, J. concurring).

The Montana Legislature expressly invoked its interest in protecting the

individual right to privacy. See HB 702 (WHEREAS clause citing to State

v. Nelson, 941 P.2d 441, 448 (Mont. 1997) (“Medical records are



quintessentially private and deserve the utmost constitutional

protection.”)).

The State need not meet such a high burden because equal

protection claims involving health care regulations are subject to rational

basis review. See Wiser v. State, 129 P.3d 133, 138 (Mont. 2006) (There

is no fundamental right to health care, free of regulation).

“The equal protection clause does not preclude different treatment

of different groups or classes of people so long as all persons within a

group or class are treated the same.” Powell v. State Comp. Ins. Fund,

15 P.3d 877, 883 (Mont. 2000). A “statute does not violate the right to

equal protection simply because it benefits a particular class.” Gazelka

v. St. Peter’s Hosp., 420 P.3d 528, 535 (Mont. 2018). Plaintiffs must make

some showing, beyond a bare assertion, that the chosen groups are

similarly situated. Cf. Vision Net, Inc. v. State, 447 P.3d 1034, 1038

(Mont. 2019). Groups are similarly situated if “they are equivalent in all

relevant respects other than the factor constituting the alleged

discrimination.” Id.

The Clinics and PHS don’t proffer sufficient facts to establish that

they are equivalent in “all other respects” to nursing homes, long term



care facilities, or assisted living facilities. See Compl. ¶ 70 (HB 702

distinguishes between “OPPs and Hospitals and different types of

licensed facilities that treat the same types of patients.”). Plaintiffs’ own

words acknowledge Clinics and PHS are ‘different’ than nursing homes,

long term care facilities, and assisted living facilities. This is because

they are different—they operate under different regulations and are

licensed separately and differently. See, e.g., MCA § 50-5-101(7), (26),

(31), (37), (56) (defining assisted living facilities, long term care facilities,

nursing homes, physician offices, and hospitals); see also Mont. Admin.

R. 37.106.4, 37.106.6, 37.106.28 (minimum standards for hospitals,

nursing facilities, and assisted living facilities). Plaintiffs have not

pleaded any facts showing how they are equivalent in all respects to other

health care facilities in the face of the obvious proposition that regardless

of HB 702 Montana regulates different kinds of facilities differently.

Because Plaintiffs fail to plead sufficient facts to establish they are

similarly situated to assisted living facilities, long term care facilities,

and nursing homes “it is not necessary … to analyze the challenge

further.” Vision Net, 447 P.3d at 1038.



The Appleby individuals draw an even more muddled claim, again

without factual support, that they are “disparately and adversely

affected” by HB 702 as compared to some undefined group of “similarly

situated Montana citizens.” Compl. ¶ 71. It is unclear under what theory

Plaintiffs claim discrimination because they completely fail to plead the

elements of a claim and support those elements with sufficient facts. As

with the other Plaintiffs, the Appleby individuals fail to establish they

are equivalent to the “similarly situated Montana citizens,” Compl. ¶ 71,

that they do not identify or attempt to identify as a class. As with their

incorrect, conclusory statement that there “is no state interest or rational

basis,” Compl. ¶ 72, for HB 702’s anti-discrimination provisions,

Plaintiffs are only offering legal conclusions devoid of a factual

foundation. Such pleadings are wholly deficient, and this Court should

dismiss their Seventh Claim.

D. Anti-discrimination statutes such as HB 702 do not violate the Fourteenth Amendment’s Equal Protection Clause.

Plaintiffs’ federal equal protection claim suffers from the same

defects as their Montana equal protection claim. They offer only the

same unsupported conclusions. See, e.g., Compl. ¶ 78 (HB 702 “draws an



unreasonable and baseless distinction between OPPs and Hospitals and

different types of health care facilities.”). Plaintiffs again fail to identify

similarly situated comparator classes. See generally Ala. Dep’t of

Revenue v. CSX Transp., Inc., 575 U.S. 21, 30 (2015) (“[P]icking a class is

easy, but it is not easy to establish that the selected class is similarly

situated”). Plaintiffs fail to meet the basic requirements of setting forth

their legal claim, its elements, and supporting those elements with

factual evidence.

Additionally, for the reasons previously stated, the State possesses

a compelling state interest in protecting its citizens from discrimination

and protecting their right to privacy. The State need only meet rational

basis because the Plaintiffs do not plead a violation of any federal

constitutional right to trigger strict scrutiny under their federal claim.

In any case, HB 702’s differential treatment of health care facilities is

subject to rational basis review. See Llewellyn v. Crothers, 765 F.2d 769,

775 (9th Cir. 1985) (Rational basis applies because “[t]he state has broad

authority and discretion in the regulation of economic affairs.”).



CONCLUSION

Plaintiffs’ Amended Complaint is a morass of factually unsupported

conclusory statements that requires the Court to delve deep into

inference, conjecture, and hypotheticals and woefully short of what Rule

8 requires. For the reasons set forth above, this Court should grant the

State’s motion to dismiss.

DATED this 10th day of November, 2021.

AUSTIN KNUDSEN Montana Attorney General KRISTIN HANSEN Lieutenant General DAVID M.S. DEWHIRST Solicitor General

/s/ Brent Mead BRENT MEAD Assistant Solicitor General 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401 p. 406.444.2026 [email protected] Attorney for Defendants



CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(d)(2), I certify that this brief is printed

with a proportionately spaced Century Schoolbook text typeface of 14

points; is double-spaced except for footnotes and for quoted and

indented material; and the word count calculated by Microsoft Word for

Windows is 6,333 words, excluding tables of content and authority,

certificate of service, certificate of compliance, and exhibit index.

/s/ Brent Mead BRENT MEAD

CERTIFICATE OF SERVICE

I certify that on this date, an accurate copy of the foregoing

document was served electronically through the Court’s CM/ECF

system on registered counsel.

Dated: November 10, 2021 /s/ Brent Mead BRENT MEAD


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